from the that-makes-no-sense dept

If you don't recall, among the various domains that ICE and the DOJ seized last year were two domains -- rojadirecta.com and rojadirecta.org -- held by a Spanish company, Puerto 80. After extended negotiations to try to get the government to return the domain names, Puerto 80 finally sued the government to get them back. Almost immediately after, the government filed to forfeit the domains (seizing property is supposed to be a temporary thing -- if the owner wants it back, the government has to file for forfeiture to keep it permanently). Thus there are two semi-parallel issues going on here. Either way, the judge rejected the request to return the domains prior to the trial, and while the appeal on that process is ongoing, back in the district court, the fight over forfeiture has continued.

Last December (actually the same day that the government was handing back the Dajaz1 domain in a similar dispute), the lower court dismissed the forfeiture claim -- saying that the government failed to plead willful copyright infringement, which is necessary to show criminal copyright infringement. However, it allowed the government to refile, which it did. The two sides have filed their latest motions in the case, and once again, it appears that they're talking about two totally different things. In fact, reading through the government's filing, it appears that they either have no understanding of the law itself, or have twisted themselves into such a tight knot, that they're not sure how to get out of it.

The details are a bit tedious, but let's see if we can break it out. First off, the seizure and forfeiture are "in rem" -- meaning that the case is against the domains themselves, and not the owners of the domains. That can be an awkward distinction, obviously, but the government makes it much, much more awkward in that it seems to shift its argument back and forth constantly. For example, it repeatedly (in a rather mocking tone) rejects the arguments of Puerto 80 by noting that no one is accusing Puerto 80 of anything. The case is merely about how the Rojadirecta domains "facilitate" criminal copyright infringement. So the government argues that the court should ignore the (rather compelling) defenses for why Puerto 80 did not violate criminal copyright law.

Now, that part is fine... but where it gets weird is that the government immediately then tries to use Puerto 80s actions as proof of facilitating infringement. If you're playing along with the home game, the government is arguing both that Puerto 80s actions are meaningless to the case and that Puerto 80's actions are the key to facilitating criminal copyright infringement. Basically, whenever Puerto 80 points out that its actions do not meet the standard of criminal copyright infringement, the government waves its hands and says "doesn't matter, we're not charging you, just the URL." But then to prove that the URL "facilitated" the actions, it cites Puerto 80's actions, rather than the URL's actions. That's because the URL doesn't act. It's just a URL. See the following as an example:

Additionally, there can be no serious argument that the Government has alleged that the
Rojadirecta Domain Names' facilitation of the underlying copyright offense was anything but substantial.
See Amended Complaint... ("At all relevant times, the links displayed on the main homepage of the
Rojadirecta Website were purposefully aggregated and organized by the owner(s) and/or operator(s) of
the Rojadirecta Website. Moreover, more than half of the material available on the Rojadirecta Website
at any given time during law enforcement's investigation appeared to be dedicated to making infringing
content available to users of the Rojadirecta Website.")....

Puerto 80's arguments about its own conduct are irrelevant and misapprehend the nature of the
inquiry

See that? First it's "here's all the evidence of things done by Puerto 80"... and then immediately, "Puerto 80's actions are irrelevant".

At times this reaches absolutely absurd levels, such as the part of the government's filing in which they assert that the domain itself had knowledge of infringement. The feds can't say Puerto 80 had knowledge, since (again) they admit that Puerto 80 is not being charged. So they switch and anthropomorphize the domain itself:

Indeed, the Rojadirecta Domain Names were repeatedly noticed
that they were linking to copyright infringing content.

You see? It's not Puerto 80 who was noticed, but the domain name itself. It must have "known." Or something.

The government's argument gets even worse from there, because nowhere does it show where the criminal copyright infringement happened. In order for the government to claim that the Rojadirecta domains facilitated criminal copyright infringement, you would think the first step would have to be to show where it actually happened. Here, the government basically waves its hand and says, "of course it happened." First, it highlights the fact that because of links on the Rojadirecta sites, content could be streamed from third party sites. In fact, it straight out admits that Rojadirecta hosted no infringing content, but rather it was all on these other sites. It then notes that such streams likely violated the performance and reproductions rights under the Copyright Act. That may be true, but that, alone, does not make it a criminal offense. That requires willfulness -- which was the problem in the original filing.

But, here again, the feds run into a serious problem: how can they show willfulness on the part of the infringer when they never identify an infringer? The entire filing insists that the domains should be forfeited because they were used to facilitate a crime, but they never show that any crime was actually committed, because they never even attempt to identify who committed the crime. They admit that it's not Puerto 80 (even as they try to use Puerto 80's actions). It likely isn't the users of Rojadirecta (and the government doesn't even try to make that claim). Instead, it seems to hint at an imaginary party who willfully infringed, but is never actually identified! It's really amazing.

The implications here are staggering. Basically, the feds are arguing that they can seize and then forfeit a domain without showing any crime actually happened. Instead, all they need to do is vaguely assert that someone, somewhere may have possibly violated a law somehow using the domain in the process -- but they never have to actually prove anyone violated the specific law. In other words, if the government wanted to, under this definition, it could easily seize and forfeit any search engine domain or any website that allows public comments, merely by asserting that a link in a search result or a link in a comment led to infringing material. That's an insane interpretation of the law -- yet it appears to be the one that the feds are asserting.

One hopes that the judge actually understands the absolutely insanity of the feds' argument here. Puerto 80's lawyers lay it out nicely (pdf) in their response, but courts can be funny sometimes -- especially in copyright cases. Still, the argument made by Puerto 80's lawyers lay out just how ridiculous this interpretation would be:

Under the government’s construction of [the law], every domain name
that pointed to a website containing links to infringing copies would “facilitate” and have a
“substantial connection” to the offense of criminal copyright infringement, and would therefore
be subject to forfeiture. The broad construction of the term “facilitation” the government seeks
would give it the power to shut down google.com, yahoo.com, bing.com, or any of an array of
other channels of communication that—like every site on the Internet—link to content provided
by third parties that might or might not be infringing. The property in question is two domain
names, which (in the government’s words) are merely “labels” that “resolve” to websites, and are
distinct from the servers that host the website or any content of it....

The government’s theory would
have allowed it to seize the New York Times issue that published the Pentagon Papers and
destroy it, on the theory that the New York Times was facilitating Daniel Ellsberg’s violation of
national security laws. And the Times would have had no opportunity to show that its speech
was lawful. There is no reason to think Congress intended the forfeiture statute to extend so
broadly. And even if it had, Congress lacks the power to confer such plenary control over
speech on government agents acting without judicial sanction.

Of course, all of this doesn't even touch on two other important issues in the case. One is the First Amendment questions raised by seizing a domain and the second is the fact that US copyright law only matters in the US, not in Spain. In both cases, the government again comes back with wacky responses. On the First Amendment claim, it argues there's no First Amendment issue, relying incorrectly on the Arcara vs. Cloud Books case. But that ruling is clear that it only applies if the crime in question is not expressive. But copyright infringement is often absolutely expressive. It may not be protected expression but it is expression, and as such it requires First Amendment scrutiny to make that determination. The government flat out claims that copyright infringement (which it falsely calls "intellectual property theft") is "unrelated to speech." That's simply incorrect. Courts have long established that there is a balance between copyright and the First Amendment, and you can only establish infringement following a ruling by a court. Yet here the government wants to skip over that step entirely. As Puerto80 notes:

The government argues that the links on the Rojadirecta website are not protected speech
because they constitute copyright infringement. But that argument exactly misses the point of
the prior restraint doctrine. Unless and until there has been a final determination on the merits
after an adversary hearing, there is no basis to find that criminal copyright infringement occurred
on the third party sites to which the Rojadirecta website linked.

As for US law being applied outside the US, here the government just tries to wave this issue off again. It first admits that US law does not apply outside its borders, but then insists that it is "inconceivable" that some infringement didn't happen inside the US. But that's not how the law works. You have to actually show the infringement. You can't just insist that it happened somewhere in the US and move on...

The further this case goes, the worse and worse the government's arguments seem to get, and the less and less it seems to understand about the hole it has dug for itself.

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I'm beginning to think that is the legal strategy behind a lot of these cases.

File convoluted and meandering motions in volume so that eventually the judge runs out of ibuprofen and just highlights a couple paragraphs to cite justifying his/her decision so the pounding will stop.

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Well, considering that property can be seen as complicit in criminal activities and seized in most states now, this actually is legally consistent with an emerging government philosophy that, "What's mine is mine, and what's yours is mine, too."

They're doing to domains what they've done to houses, cars, and cash for a couple of decades now.

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That makes infinitely more sense than the government's legal arguments.

Somehow, the US government has convinced itself, or been convinced by someone, that Puerto 80 indeed created a self aware artificial intelligence, and that entity did not reside on the servers, but in the domain names. Thus, they must sieze the domain names to prevent the extinction of biological life, or more likely, to control it so the government gets to decide what it decides to exterminate.

If I didn't know any better, I'd think the government's attorneys were some of the ACs who visit this site regularly. You know which ones I'm referring to. The ones who claim to be legal experts and know all the facts, despite saying on occasion they know none of the facts of the cases they speak about because no facts are readily available.

I like to think of them as Chewbacca attorneys. Which is awesome because of the hand waving references in the article.

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Re-echoing my earlier comment from today: this shows us that the copyright industries are getting closer to what they need, which is the ability to make arbitrary content disappear from the web with no warning and no meaningful review.

Actually proving infringement just doesn't scale for them: the content industries have to be able to destroy infrastructure at low cost, and without regard for the rights of others.

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Getting closer?

Uhh, mate, not to insult you or anything, but have you heard of the DMCA? Content industries already have the power to disappear arbitrary content from the web with no warning and no review, with no regard for the rights of others.

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This. Under the "safe harbor" provision of the DMCA, (an Orwell-grade misnaming of a legal statute if there ever was one,) the content industry can get allegedly infringing content taken down on accusation alone, with no evidence, no due process, and no proof that they even own the rights to the material in question in the first place. (And according to Google's study of the matter, 37% of takedown requests do not represent a valid copyright claim, so this is a real problem, not a hypothetical one!)

It was this doctrine that SOPA and PIPA used as the foundation to build further abuses on. And until we push back and get the DMCA repealed, (or overturned by judicial review,) they'll keep trying to build more bad laws around it.

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Thanks to Rikuo and Mason Wheeler for criticizing my sloppy writing and leading me to a new realization:

The current goal of the content industries is to extend the low DMCA standard for removing a single piece of content to apply to the removal of entire websites. (which I called "infrastructure" in my previous response.)

the US government constantly seems to think that everything it says is and has to be taken as the truth, that everything it wants to happen will happen and that everything that it does that is detrimental to itself must be ignored. what the hell is wrong with it? it cant keep changing it's arguments to suit itself, particularly when it's argued over something in one direction, then change it's mind. it has screwed up big time, it will screw up big time again unless it is slapped good and hard. those that get hurt and penalised should have recourse backed up by the courts. those pulling the strings in these cases need exposing and slapping as hard, if not harder, than the government

The government may have a case. There is reasonable proof that criminal copyright infringement took place. Material was published and distributed without the copyright holder's permission. There was also plenty of clues for whoever infringed that they are acting against the copyright holder's wishes. Then it does not matter who infringed, only that the domain (as property) facilitated the infringement.

That said, the forfeiture law is still awful and the burden of evidence on government is frighteningly low. Under these arguments, the US government could probably forfeit all copiers, iPods, laptops and most servers in the existence.

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"The government may have a case. There is reasonable proof that criminal copyright infringement took place. Material was published and distributed without the copyright holder's permission. There was also plenty of clues for whoever infringed that they are acting against the copyright holder's wishes. Then it does not matter who infringed, only that the domain (as property) facilitated the infringement."

Wrong. Plenty of clues? For that to work, Rojadirecta would have needed an encylopedic knowledge of all copyright protected works everywhere, so as to instantly know that a page with links for "Random Movie X" was obviously infringing. More and more content is being deliberately put on the web by their authors.
Also, what reasonable proof? For criminal copyright infringement, you need a far higher standard of proof. According to the government filings, Puerto 80 isn't being charged criminally: without being charged, you can't say that Criminal Copyright Infringement took place. You basically ignored this paragraph

"The government's argument gets even worse from there, because nowhere does it show where the criminal copyright infringement happened. In order for the government to claim that the Rojadirecta domains facilitated criminal copyright infringement, you would think the first step would have to be to show where it actually happened. Here, the government basically waves its hand and says, "of course it happened." First, it highlights the fact that because of links on the Rojadirecta sites, content could be streamed from third party sites. In fact, it straight out admits that Rojadirecta hosted no infringing content, but rather it was all on these other sites. It then notes that such streams likely violated the performance and reproductions rights under the Copyright Act. That may be true, but that, alone, does not make it a criminal offense. That requires willfulness -- which was the problem in the original filing. "

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US forfeiture laws don't require a charge ever be brought, let alone a criminal case won. Civil forfeiture merely requires "reasonable suspicion" that a piece of property was used in a criminal transaction. Usually these laws are used for drug busting, but I guess they're pretty flexible. And gross.

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"The government may have a case. There is reasonable proof that criminal copyright infringement took place. Material was published and distributed without the copyright holder's permission. There was also plenty of clues for whoever infringed that they are acting against the copyright holder's wishes. Then it does not matter who infringed, only that the domain (as property) facilitated the infringement."

Horseshit. If that were true, Google and every other search engine and every website with user generated/3rd party links could be seized. Clearly, this cannot and should not be the case. In your example above, the infringement is on THE INDIVIDUAL USER, not the site in general. Thats why safe harbors and all that exist.

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I believe that the forfeiture law came about for more tangible things, like drug trafficking. If DEA can show that a boat may have been used to run drugs from Mexico to the US, they can forfeit the boat because it (may have) facilitated a crime. Again, it is the property that was used to commit crime, not its owner or any specific user. Since nobody is being charged, there is no trial. And since property has no rights, and since government's powers trump the owner's rights, the boat is auctioned off.

Just because copyright infringement happened doesn't necessarily mean it was criminal copyright infringement.

Using the government's example: If you went to the site and used a link on the site to stream a football game that is otherwise only available on a premium channel or for a fee (this being stated explicitly on the website), would a reasonable person believe that the streaming is done against the wishes of the copyright holder? Correct me if I am wrong, but that is the primary test for criminal infringement.

Google and every other search engine and every website with user generated/3rd party links could be seized. Clearly, this cannot and should not be the case.

Yes, using the government's logic here and finding a really crazy judge, they probably could. I agree that it shouldn't be the case, but the Law has nothing to do with logic and only a tenuous connection to right and wrong.

In your example above, the infringement is on THE INDIVIDUAL USER, not the site in general

The infringement is taken as an asserted fact, without blaming any specific person. Similarly, my bike can be said to be stolen, without accusing any specific person.

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The government may have a case. There is reasonable proof that criminal copyright infringement took place. Material was published and distributed without the copyright holder's permission. There was also plenty of clues for whoever infringed that they are acting against the copyright holder's wishes. Then it does not matter who infringed, only that the domain (as property) facilitated the infringement.

That may show civil infringement, but not criminal. That requires it to be willful and for profit...

The for profit part is hard. They can show Puerto 80 made some money on ads, but remember, it's not Puerto 80 accused of infringement. It's the users. Did the users make money? Nope. No criminal infringement.

The implications here are staggering. Basically, the feds are arguing that they can seize and then forfeit a domain without showing any crime actually happened. Instead, all they need to do is vaguely assert that someone, somewhere may have possibly violated a law somehow using the domain in the process -- but they never have to actually prove anyone violated the specific law.

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Yes, and we all know that drugs don't get smuggled any more! Plus the fact that free speech, communication and distribution of perfectly legal materials get blocked for thousands, if not millions, of people worldwide when a speedboat is seized! For crimes that may not even be felonies, let along criminal infractions, no less!

If you honestly directly equate the two, even ignoring the relative problems with drugs compared to file sharing, there's really no hope...

Hasn't the DEA been doing this for years?

I've heard several stories over the years that the DEA would take your money if you were carrying over a couple of thousand dollars in cash. Carrying that much cash, their reasoning went, could only mean you were involved with illegal drugs. They take it and you can only get it back after you have proved that it came from a legal source.

Well, if you own a domain name then, the new reasoning goes, you must be a pirate. So prove you're not.

Re: Hasn't the DEA been doing this for years?

About 3 years ago a friend of mine was passing through an airport (flight form one US state to another) with nearly $10k USD and the TSA agent saw it on the x-ray and called his manager. His manager said so what, give the man his money back. My friend got on his flight and that was that.

On the First Amendment claim, it argues there's no First Amendment issue, relying incorrectly on the Arcara vs. Cloud Books case. But that ruling is clear that it only applies if the crime in question is not expressive. But copyright infringement is often absolutely expressive. It may not be protected expression but it is expression, and as such it requires First Amendment scrutiny to make that determination. The government flat out claims that copyright infringement (which it falsely calls "intellectual property theft") is "unrelated to speech." That's simply incorrect.

But "[c]opyright laws are not restrictions on freedom of speech . . . ." Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 556, 105 S. Ct. 2218, 2228, 85 L. Ed. 2d 588 (1985)(citing New York Times Co. v. United States, 403 U.S. 713, 726, n.* (BRENNAN, J., concurring)). Your argument makes little sense: You are arguing that even though infringement is not protected expression, it's expression nonetheless, so it should be protected. How is "copyright infringement . . . often absolutely expressive"? I don't understand what you mean.

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I believe the implication is that a spreading a copyrighted material is the sharing of ideas, concepts, culture, and/or knowledge which warrants first amendment consideration.

It may be that the actual expression ends up being illegal (e.g., a copyright violation), but because it is a form of communication, which is protected, the seizure warrants additional scrutiny and is held to a high level of proof than say a car seizure in a drug case.

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Re-read the article, then. He's arguing that the government is saying Puerto 80 did not commit criminal copyright infringement out of one side of the mouth, and that their actions facilitated just that out of the other.

Basically, whenever Puerto 80 points out that its actions do not meet the standard of criminal copyright infringement, the government waves its hands and says "doesn't matter, we're not charging you, just the URL." But then to prove that the URL "facilitated" the actions, it cites Puerto 80's actions, rather than the URL's actions. That's because the URL doesn't act. It's just a URL.

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I'm trying to understand what the import of Mike's argument is. Does that mean domain names can't be seized if they're used for infringement? Does that mean the forfeiture statute gets intermediate scrutiny? Does that mean that there has to be a prior adversarial hearing? I'm trying to get him expand the argument more. He's devoted two or three sentences to a topic that would take a 100 page research paper to fully run through the details.

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Your argument makes little sense: You are arguing that even though infringement is not protected expression, it's expression nonetheless, so it should be protected. How is "copyright infringement . . . often absolutely expressive"? I don't understand what you mean.

I'm sorry if this is confusing to you. The argument is that while infringing expression is not protected speech, you cannot declare infringement when it has not yet been shown (or in this case, ever actually alleged). Thus, the expression needs to be considered protected until there is proof of infringement. Thus, until there is proof (i.e. a ruling on infringement), the courts need to assume that the expression is protected.

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I'm sorry if this is confusing to you. The argument is that while infringing expression is not protected speech, you cannot declare infringement when it has not yet been shown (or in this case, ever actually alleged). Thus, the expression needs to be considered protected until there is proof of infringement. Thus, until there is proof (i.e. a ruling on infringement), the courts need to assume that the expression is protected.

There is proof of infringement. The agent conducts an investigation and presents an affidavit to a neutral magistrate who issues a seizure warrant. What you haven't shown is why this is insufficient. The courts do start with the presumption that the domain names are not used to facilitate crime. Then, after considering the evidence presented by the affiant, the magistrate issues a warrant. Even if we assume that the links/embeds/whatever are presumptively protected expression, you haven't shown why probable cause is insufficient to seize the property used to commit infringement. You seem to think the trial has to happen first, but neither you nor anyone else can point to any case law where a prior adversary hearing has to happen in a COPYRIGHT case. The reason you can't find any case law that says that is because none exists.

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Your argument makes little sense: You are arguing that even though infringement is not protected expression, it's expression nonetheless, so it should be protected. How is "copyright infringement ... often absolutely expressive"? I don't understand what you mean.

It is not just his argument, it is the one that Mark Lemley is making in this case.

Copyright is a restriction on expression. That much is inarguable. That it does not run afoul of the First Amendment does not change that fact. If there is any government action directed at unlawful speech activities, then certain restrictions must be obeyed for that action to be lawful under the First Amendment.

And one of those restrictions is that speech cannot be taken out of circulation without an adversarial hearing. It may not be a full trial, but there needs to be at least an adversarial hearing (such as a preliminary injunction hearing) where both the plaintiff and the defendant have a chance to present their case to the court. Until such a hearing occurs, all expression is presumptively protected by the First Amendment. It cannot be done ex parte, as the seizure was. See Fort Wayne Books v. Indiana: "Thus, while the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause (and even without a warrant in various circumstances), it is otherwise when materials presumptively protected by the First Amendment are involved. [...] As noted above, our cases firmly hold that mere probable cause to believe a legal violation has transpired is not adequate to remove books or films from circulation."

And that applies if the government is only blocking the unlawful speech itself. But that is not what the government is doing. It is not just blocking infringement; it is blocking the entire website, which includes plenty of speech that is not even allegedly infringing. This is unacceptable in any case. Simply put, no court has ever concluded that it is acceptable that lawful speech be blocked while blocking unlawful speech. If it does, it is "overbroad," thus unconstitutional. Instead, the government action must be narrowly tailored to block only the unlawful speech; and it must be the least restrictive means of doing so.

The government tries to get around this by using Arcara as a shield against any First Amendment scrutiny whatsoever. But in order for Arcara to be relevant, the conduct that "drew the legal remedy in the first place" must be "nonexpressive activity." It is only relevant if the government is regulating "neither speech nor an incidental, nonexpressive effect of speech." In fact, "if a city were to use a nuisance statute as a pretext for closing down a bookstore because it sold indecent books [...], the case would clearly implicate First Amendment concerns." It specifically cannot apply if the action is "imposed on the basis of an advance determination that the distribution of particular materials is prohibited."

Incidentally, it is very likely that the "actions" of the Rojadirecta website weren't even infringing at all. The Rojadirecta site did not host any content, nor provide any of the streams itself. It merely provided links to content. And links to infringing content are not, in themselves, infringing: "Because the actual transfer of a file between computers must occur, merely providing a 'link' to a site containing copyrighted material does not constitute direct infringement of a holder’s distribution right." MyPlayCity v. Conduit Ltd.

I honestly don't see how the government is going to get out of this one. Especially after they've changed their story so much from filing to filing.

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Copyright is a restriction on expression. That much is inarguable.

I said it above: But "[c]opyright laws are not restrictions on freedom of speech . . . ." Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 556, 105 S. Ct. 2218, 2228, 85 L. Ed. 2d 588 (1985)(citing New York Times Co. v. United States, 403 U.S. 713, 726, n.* (BRENNAN, J., concurring)). You may think it's inarguable, but obviously the Supreme Court takes a different view. As per Eldred and Golan, substantive copyright laws get no First Amendment scrutiny. Copyright laws are different, and you can't just ignore the fact that the Court treats them differently than other "speech restrictions."

And one of those restrictions is that speech cannot be taken out of circulation without an adversarial hearing. It may not be a full trial, but there needs to be at least an adversarial hearing (such as a preliminary injunction hearing) where both the plaintiff and the defendant have a chance to present their case to the court. Until such a hearing occurs, all expression is presumptively protected by the First Amendment.

And yet you can't point to one single copyright case where a prior adversarial hearing had to happen before there was a seizure. Why? Because copyright is different. Copyright is treated differently. "Furthermore, it is well-settled law that the prior restraint doctrine is inapplicable in cases where one's proprietary interests are at stake, such as infringements of copyright or trademark." Bosley v. Wildwett.com, 310 F. Supp. 2d 914, 930-31 (N.D. Ohio 2004).

It cannot be done ex parte, as the seizure was. See Fort Wayne Books v. Indiana

And you can't find a single copyright case where the court applied the extraordinary procedural safeguards from Fort Wayne. Why? Because copyright works differently. The fact is, an objective determination can be made that infringement is occurring, and therefore the dangers of subjective determinations found in cases involving, say, obscenity, aren't present. The problem you and Mike have is in understanding that the Court doesn't see copyright as being in contention with the First Amendment. Rather, they see the two as promoting the same goal.

And that applies if the government is only blocking the unlawful speech itself. But that is not what the government is doing. It is not just blocking infringement; it is blocking the entire website, which includes plenty of speech that is not even allegedly infringing.

Websites aren't being blocked. There's no filter. No injunction. All that's happened is that a piece of property--the domain name--has been seized by a court in anticipation of forfeiture. The fact that the property was used for good doesn't make it not forfeitable.

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I said it above: But "[c]opyright laws are not restrictions on freedom of speech . . . ." Harper & Row Publishers, Inc. v. Nation Enterprises

The court in Harper & Row was not saying that copyright laws were not restrictions on expression. They were saying that they were restrictions on expression that nonetheless do not run afoul of the First Amendment. And they were dealing specifically with the idea/expression dichotomy:

The Second Circuit noted, correctly, that copyright's idea/ expression dichotomy
"strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author's expression."

723 F.2d at 203. No author may copyright his ideas or the facts he narrates. 17 U.S.C. § 102(b). See, e.g., New York Times Co. v. United States, 403 U. S. 713, 403 U. S. 726, n. (1971) (BRENNAN, J., concurring) (Copyright laws are not restrictions on freedom of speech, as copyright protects only form of expression, and not the ideas expressed); 1 Nimmer § 1.10[B][2]. As this Court long ago observed:

"[T]he news element -- the information respecting current events contained in the literary production -- is not the creation of the writer, but is a report of matters that ordinarily are publici juris; it is the history of the day."

The mere fact that, as the court acknowledged, there must be "a definitional balance between the First Amendment and the Copyright Act," shows that it is a restriction on expression. That restriction is not unconstitutional - in fact, it is necessary - but it is a restriction on speech nonetheless, and must be viewed as such.

As per Eldred and Golan, substantive copyright laws get no First Amendment scrutiny.

That is a complete misreading of both Eldred and Golan. Neither case was dealing with "substantive copyright laws." The only question before the courts was whether Congress had the right to extend already-existing laws, making no other changes to them. That is not even remotely saying that copyright laws do not get any First Amendment scrutiny at all, and claiming that's what they said is disingenuous at best.

An analogy. Let's say that Congress increased the maximum damage awards that can be recovered in libel cases. Or that they extended the maximum jail sentence for those convicted of obscenity. In neither case would these statutes require First Amendment scrutiny, either. But that doesn't mean that libel and obscenity "get no First Amendment scrutiny" in general.

And you can't find a single copyright case where the court applied the extraordinary procedural safeguards from Fort Wayne.

First of all: the procedural safeguards from Fort Wayne Books weren't "extraordinary." They are standard procedural safeguards when any type of expressive work is seized.

Second of all: we can't find a seizure case like this because the government wasn't allowed to do it by statute, so the subject never came up. Take a look the text of 17 USC 509:

All copies or phonorecords manufactured, reproduced, distributed, sold, or otherwise used, intended for use, or possessed with intent to use in violation of section 506(a) [17 USCS Sect. 506(a)], and all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced, and all electronic, mechanical, or other devices for manufacturing, reproducing, or assembling such copies or phonorecords may be seized and forfeited to the United States.

Under that law, the government certainly wouldn't be allowed to seize a domain name. It just doesn't meet the criteria.

And while it's true that this law is no longer in effect, it was only superseded in 2008. Simply put, these seizures are unique; nothing like them has ever happened before.

For a "real-world" analogy, this is like the government seizing the building that houses a record store, merely on the basis of probable cause that the record store was being used to "facilitate" the selling of bootlegs. As far as I know, the government never even attempted such a thing in the past.

And, of course, criminal infringement cases were always extraordinarily rare. Almost all copyright cases were considered civil in nature. As New York Times v. United States put it: "when the press is enjoined under the copyright laws, the complainant is a private copyright holder enforcing a private right." That is not the case here. The plaintiff is not "a private copyright holder," but the U.S. government; and the government has far more restrictions under the First Amendment than private parties do.

Generally in copyright cases, an adversarial hearing is always required prior to impoundment. That cannot be done ex parte. Some exceptions may be made, but they are rare and actively discouraged under the law:

(a) Preliminary Injunction.

(1) Notice. The court may issue a preliminary injunction only on notice to the adverse party. [...]

(b) Temporary Restraining Order.

(1) Issuing Without Notice. The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if:

(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and

(B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.

(2) Contents; Expiration. Every temporary restraining order issued without notice must state the date and hour it was issued; describe the injury and state why it is irreparable; state why the order was issued without notice; and be promptly filed in the clerk's office and entered in the record. The order expires at the time after entry—not to exceed 14 days—that the court sets, unless before that time the court, for good cause, extends it for a like period or the adverse party consents to a longer extension. The reasons for an extension must be entered in the record.

(3) Expediting the Preliminary-Injunction Hearing. If the order is issued without notice, the motion for a preliminary injunction must be set for hearing at the earliest possible time, taking precedence over all other matters except hearings on older matters of the same character. At the hearing, the party who obtained the order must proceed with the motion; if the party does not, the court must dissolve the order.

(4) Motion to Dissolve. On 2 days’ notice to the party who obtained the order without notice—or on shorter notice set by the court—the adverse party may appear and move to dissolve or modify the order. The court must then hear and decide the motion as promptly as justice requires.

(c) Security. The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained. The United States, its officers, and its agencies are not required to give security. [...]

The fact is, an objective determination can be made that infringement is occurring

First: Obviously, it cannot, or else Dajaz1's domain would never have been seized in the first place.

Second: Criminal infringement requires much more than the fact that "infringement is occurring." That's even explicitly stated in 17 USC 506(a)(2). The infringement must meet the standard of criminal willfulness; prosecution has the burden of showing that an individual has the mens rea warranting criminal punishment. See e.g. United States v. Moran: "[U]nder 17 U.S.C. § 506(a) 'willfully' means that in order to be criminal the infringement must have been a 'voluntary, intentional violation of a known legal duty.'" This cannot be determined ex parte.

It must also meet certain economic requirements: it must be either "for purposes of commercial advantage or private financial gain;" or be distributing works "which have a total retail value of more than $1,000;" or be distributing a "leaked" copy of a work. The government did not even try to show that the direct infringement met this standard.

Websites aren't being blocked. There's no filter. No injunction.

This is clearly nonsense. The government's own argument was that the domain was seized to block the website from being accessed.

The government made exactly the same argument in Fort Wayne Books:

In its decision below, the Indiana Supreme Court did not challenge our precedents or the limitations on seizures that our decisions in this area have established. Rather, the court found those rules largely inapplicable in this case. The court noted that the alleged predicate offenses included 39 convictions for violating the State's obscenity laws, and observed that the pretrial seizures (which were made in strict accordance with Indiana law) were not based on the nature or suspected obscenity of the contents of the items seized, but upon the neutral ground that the sequestered property represented assets used and acquired in the course of racketeering activity.

"The remedy of forfeiture is intended not to restrain the future distribution of presumptively protected speech, but rather to disgorge assets acquired through racketeering activity. Stated simply, it is irrelevant whether assets derived from an alleged violation of the RICO statute are or are not obscene."

The court also specifically rejected petitioner's claim that the legislative inclusion of violations of obscenity laws as a form of racketeering activity was "merely a semantic device intended to circumvent well-established First Amendment doctrine."

We do not question the holding of the court below that adding obscenity law violations to the list of RICO predicate crimes was not a mere ruse to sidestep the First Amendment. And, for the purpose of disposing of this case, we assume without deciding that bookstores and their contents are forfeitable (like other property such as a bank account or a yacht) when it is proved that these items are property actually used in, or derived from, a pattern of violations of the State's obscenity laws. Even with these assumptions, though, we find the seizure at issue here unconstitutional. It is incontestable that these proceedings were begun to put an end to the sale of obscenity at the three bookstores named in the complaint, and hence we are quite sure that the special rules applicable to removing First Amendment materials from circulation are relevant here. This includes specifically the admonition that probable cause to believe that there are valid grounds for seizure is insufficient to interrupt the sale of presumptively protected books and films.

Whether you believe Fort Wayne Books is ultimately applicable to copyright seizures or not, it is very clear that you can't just claim a seizure was for some generally-applicable statute, when it was clearly being used to block speech. The courts will see right through that bullshit, which they should, because it is bullshit, and obviously so.

Re: Re: Re: Re:

The court in Harper & Row was not saying that copyright laws were not restrictions on expression. They were saying that they were restrictions on expression that nonetheless do not run afoul of the First Amendment. And they were dealing specifically with the idea/expression dichotomy:

The Second Circuit noted, correctly, that copyright's idea/ expression dichotomy
"strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author's expression."

723 F.2d at 203. No author may copyright his ideas or the facts he narrates. 17 U.S.C. § 102(b). See, e.g., New York Times Co. v. United States, 403 U. S. 713, 403 U. S. 726, n. (1971) (BRENNAN, J., concurring) (Copyright laws are not restrictions on freedom of speech, as copyright protects only form of expression, and not the ideas expressed); 1 Nimmer § 1.10[B][2]. As this Court long ago observed:

"[T]he news element -- the information respecting current events contained in the literary production -- is not the creation of the writer, but is a report of matters that ordinarily are publici juris; it is the history of the day."

- Harper & Row v. Nation Enterprises

The mere fact that, as the court acknowledged, there must be "a definitional balance between the First Amendment and the Copyright Act," shows that it is a restriction on expression. That restriction is not unconstitutional - in fact, it is necessary - but it is a restriction on speech nonetheless, and must be viewed as such.

The two are balanced with each other. The First Amendment gives way to copyright laws, and copyright laws give way to the First Amendment. The Court doesn't see copyright as an exception to the First Amendment. They see copyright and free speech as co-equals--two constitutional provisions that promote the same goals. Copyright laws are not restrictions on freedom of speech because copyright laws do not lock up ideas (that's the point from the section of Harper & Row you quoted). It doesn't matter that some expression is locked up as a personal property right because the ideas themselves are free for all to use. Copyright doesn't conflict with the First Amendment because it doesn't diminish the marketplace of ideas. This is why substantive copyright laws get no First Amendment scrutiny--First Amendment values, such as free exchange of ideas, are not impinged by copyright laws. What you and Mike paint as a war between free speech and copyright, the Court describes as a peaceful coexistence.

That is a complete misreading of both Eldred and Golan. Neither case was dealing with "substantive copyright laws." The only question before the courts was whether Congress had the right to extend already-existing laws, making no other changes to them. That is not even remotely saying that copyright laws do not get any First Amendment scrutiny at all, and claiming that's what they said is disingenuous at best.

An analogy. Let's say that Congress increased the maximum damage awards that can be recovered in libel cases. Or that they extended the maximum jail sentence for those convicted of obscenity. In neither case would these statutes require First Amendment scrutiny, either. But that doesn't mean that libel and obscenity "get no First Amendment scrutiny" in general.

The Court said that as long as the traditional contours (of fair use and idea/expression dichotomy) are not altered in drafting a substantive copyright law, then the law gets no First Amendment scrutiny. It gets no such scrutiny because it doesn't conflict with free speech.

First of all: the procedural safeguards from Fort Wayne Books weren't "extraordinary." They are standard procedural safeguards when any type of expressive work is seized.

Of course they're extraordinary--they're the exception. The rule is that a thing can be seized upon a showing of probable cause. The exception is for when that thing is presumptively protected speech. Ordinarily there are no extra safeguards--probable cause is sufficient. But when it's presumptively protected speech, for example magazines suspected to be obscene, then extraordinary procedural steps are needed because of the First Amendment values at stake. If the magazines were seized first and found out to be protected speech later, then protected speech would have been suppressed unnecessarily. With copyright, there just aren't these same concerns with free speech. No one is seizing copyrighted works to block access to any particular ideas. The seizures aren't a pretext to attack anyone's viewpoint.

Simply put, these seizures are unique; nothing like them has ever happened before.

This is novel in one sense, sure, but there's plenty of case law and commentary about the interaction of forfeiture laws, copyright, and the First Amendment.

First: Obviously, it cannot, or else Dajaz1's domain would never have been seized in the first place.

How does the dajaz1.com situation prove that determination of copyright infringement is a subjective analysis? It doesn't. All that case shows to me is that (maybe) someone justifiably relied on someone who just so happened to possess erroneous information. At worse, it shows that someone other than the agent was negligent. This doesn't show at all that copyright infringement is a subjective determination.

Second: Criminal infringement requires much more than the fact that "infringement is occurring." That's even explicitly stated in 17 USC 506(a)(2). The infringement must meet the standard of criminal willfulness; prosecution has the burden of showing that an individual has the mens rea warranting criminal punishment. See e.g. United States v. Moran: "[U]nder 17 U.S.C. § 506(a) 'willfully' means that in order to be criminal the infringement must have been a 'voluntary, intentional violation of a known legal duty.'" This cannot be determined ex parte.

It must also meet certain economic requirements: it must be either "for purposes of commercial advantage or private financial gain;" or be distributing works "which have a total retail value of more than $1,000;" or be distributing a "leaked" copy of a work. The government did not even try to show that the direct infringement met this standard.

I don't understand what you mean. Are you saying that there can never be probable cause because willfulness has a certain mens rea? I don't see how that follows.

This is clearly nonsense. The government's own argument was that the domain was seized to block the website from being accessed.

The government is surely trying to stop copyright infringement, but the domains are seized and forfeited because of their role in facilitating crime. The government cares not about blocking any particular ideas, which is why this isn't a censorship regime necessitating First Amendment intervention. When it's copyright, you just don't have the same First Amendment concerns about diminishing the marketplace of ideas.

Who reads them?

Eh, who reads these filings anyway? You just file something to file something. When you get before the judge, the judge then asks the attorneys for their legal argument. He hasn't done much more than scan through the paperwork. Look at these filings as merely the rough draft for your argument in court. What the judge then does depends on whether he's partial to the government or not. If he's in the government pocket, he'll shoot down any counter-arguments the defense will have. If he has an open mind, then the defense has a chance to use common sense on him.

If the feds catch a boat with a couple hundred kilos of coke, it's easy to prove it facilitated a crime. Despite what Hollwood what thinks of itself,i ts products aren't so awesome that their mere presence is evidence of crime.

Not the point!

This whole situation is simply the Gummint's reaction to the demands of their Hollywood masters screaming for them to "Do Something!!". The problem is that there's really no violation of anything so they end up in neverland. Maybe someday the US populace will wake up to what money is doing to our democracy and put a stop to it...or maybe not.